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In Reply: Scaffold law adds costs, but not safety

The absolute liability of the Scaffold Law creates perverse safety incentives: employers are guilty under almost any circumstances and employees are free of liability for their actions. That mindset only makes worksites less safe.

The writer defends New York's Scaffold Safety Law, saying it gave him his "day in court." Of course, that is precisely what Scaffold Law reformers like myself are seeking, a day in court.

Under the current absolute liability standard of the Scaffold Law, contractors and property owners are held 100 percent liable, even if they were only 1 percent at fault. Any court proceedings are to determine the dollar award, not the liability, since liability is absolute under the Scaffold Law.

This is a travesty of justice. Which is why my organization, along with the Conference of Mayors, the School Boards Association, Habitat for Humanity and dozens of others have called on Gov. Andrew Cuomo and the New York state Legislature to reform this antiquated law.

We are seeking to reform the Scaffold Law so that liability is proportional to fault — the way it is done in every other state and nearly every other part of our civil justice system. Reform would not take away injured ironworker Mark Volpe's, or anyone else's, right to sue or collect workers compensation, it would merely allow the actions of the employee to be considered by a jury.

The cost of the absolute liability standard of the Scaffold Law is astronomical. The School Construction Authority has estimated that the law cost them more $200 million in 2014 — enough to build three or four new schools. The estimated cost of the law for the $3.9 billion Tappan Zee Bridge project is as high as $390 million.

The Rockefeller Institute at the University at Albany estimates that, statewide, the law costs New York $785 million in additional public construction dollars every year.

The high cost of the Scaffold Law is primarily due to the high volume of Scaffold Law litigation. In 2012, more than half of the largest lawsuit settlements by dollar were Scaffold Law cases. So in the most litigious state in the most litigious country in the world, more than half of our biggest lawsuit settlements are due to one law that exists only in New York.

The last state to have an absolute liability standard like the Scaffold Law was Illinois, which repealed their law in 1995. Before repealing the law, Illinois had more workplace injuries and fatalities than New York; after repeal, Illinois had fewer injuries and fatalities.

Why? Because the absolute liability of the Scaffold Law does not make workplaces safer. Absolute liability creates perverse safety incentives: employers are not incentivized since they are guilty under almost any circumstances, and employees are not incentivized since they are free of liability for their actions. The Scaffold Law is not a safety law, it's a liability law, that, if anything, makes worksites less safe.

The only group that truly benefits from the absolute liability standard of the Scaffold Law is the trial lawyers, and they have spent millions lobbying Albany to maintain this outdated standard. Trial lawyers are the only ones who benefit when there is an accident or injury.

We share the concern for safety and justice, but the absolute liability standard of the Scaffold Law is not justice, and it is not making anyone safer.

The writer is executive director of Lawsuit Reform Alliance of New York.

THE ISSUE

New York state enacted its Scaffold Law back in 1885; the law makes property owners and contractors liable for most "gravity-related" injuries to workers on construction sites.

New York is the only state with such a law; other states have phased out such regulations, instead relying on the federal workers compensation system.

Those who want to alter or sunset the Scaffold Law say it adds cost to any project undertaken in the state, from private projects, like building construction, to public undertakings like the new Tappan Zee Bridge. They say the law is archaic and a job killer.

Supporters, including many construction unions, say workers need to know they are protected as they face unique risks. That includes preserving an injured worker's right to sue and recoup punitive damages and compensation for pain and suffering.